The liability for the failure to diagnose fetal malformations and the ensuing unwanted birth has been a source of discussion for some time now, as well as leading to discordant judicial decisions, especially with regard to those who have been harmed by the physician’s negligent conduct.
As is well known, the basis for such medical liability is the entitlement of the mother to decide to terminate the pregnancy in those situations provided for under Law 194/78 (after the first ninety days, only if the pregnancy or childbirth constitute a serious danger to the woman's life or if there are verified pathologies, including those relating to significant anomalies or malformations, which constitute a serious danger to the mother’s physical or mental health).
More specifically the Supreme Court Judges have held that in terms of the physician's liability for failing to diagnose a fetal malformation and an ensuing unwanted birth, such failure by is relevant to the extent that the doctor prevents the woman from choosing whether to terminate the pregnancy. The law, allows women - where certain conditions are fulfilled - to avoid the adverse effects that the child would suffer from its birth by terminating - in the presence of serious malformations - the pregnancy.
For some years now the Supreme Court judges have extended the right to damages to the father, holding that the contract between the mother and the doctor is a contract which also protects third parties (cfr. Italian Supreme Court Judgment No. 6735/02; Italian Supreme Court Judgment No.14488/04 and, more recently, Italian Supreme Court Judgment No. 2354/10).
With its recent ruling no. 16754/12, the Supreme Court has now further expanded the range of individuals who are considered to be damaged by a failure to diagnose fetal malformations, including the baby and its siblings.
As regards the latter, the status of damaged party is the result of the same considerations which have led to fathers also being recognized as having an entitlement to damages since they are undoubtedly protected by the duty of care which the doctor owes to the mother. The damages suffered by siblings have been successfully summarized by the Supreme Court in the aforementioned judgment: .. Substantial losses have, among other things been suffered as a result of the inevitable reduced amount of time parents have for them, of the increased time necessarily devoted to a child with a disability, as well as to the decreased ability to enjoy a serene and relaxed relationship with the parents themselves.
The assessment is entirely different for the handicapped baby.
While logical considerations lead to the conclusion that damages should be awarded (it appears, in fact, illogical that the person directly affected by handicap cannot be awarded damages while members of the family can), case law has often supported the opposite view, based on the alleged inexistence of the so-called right not to be born if the child is not healthy.
With judgment no. 16754/12, the Supreme Court has held, however, that the disabled baby may be awarded damages in its own right.
The Court's reasoning moves from a point of view which is different from that adopted in the past, overcoming the impasse created by the denial of the so-called right not to be born if the child is not healthy. The Court held that the damage caused to the disabled child is not the malformation per se but rather the functional state of illness and the manner in which the child will have to live its life as a disabled child.
The legitimacy of the child’s claim for damages derives, therefore, from the doctor’s negligence which does not consist in the child’s very existence or in its malformation per se, but in the existence of its disability which is the result of the mother not being able to exercise her right to terminate the pregnancy.
There is, therefore, no difference in the Court’s opinion, between a doctor who has failed to prevent an avoidable handicap or who has caused such handicap, and the medical error which has not avoided (or has contributed in not avoiding) the birth of a malformed baby (which could have been avoided if the pregnant woman has been able to terminate such pregnancy).
In the case at hand, it had transpired during the course of the trial that Ms. XXX had turned to the defendant, asking to undergo all the necessary tests in order to rule out fetal malformations (the plaintiff considered such circumstance a pre-condition for continuing the pregnancy).
The doctor had, however, only run a Tritest, failing to prescribe more specific tests with a view to ruling out chromosomal abnormalities in the fetus.
This test, however, was not considered sufficient, given the high margin of error (amounting to 40% of so-called false negatives) and was considered not to be a real diagnostic test but rather a mere generic screening as to the likelihood of fetal malformations.
In conclusion, therefore, the Supreme Court considered the losses suffered by the infant to come within the category of future losses, that is to say those losses which, when the tort is committed, have not yet been suffered, although there exist elements of presumption that lead to the conclusion that the losses will occur (cfr., to this effect, Supreme Court Judgment No. 1147 dated February 4, 1992).
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